AL-CO Properties v. Cheney

Judgment unanimously reversed, with costs, and motion denied. Memorandum: Special Term incorrectly granted summary judgment to respondent for its real estate commission upon the sale of appellant’s home. The contract between appellant sellers and respondent realtor provided, among other things, that the realtor would submit the listed property to the multiple listing service of the real estate board within 48 hours and make efforts to find a purchaser. Although a ready, willing and able buyer was found by another unassociated real estate broker, appellants contend that respondent did not perform its part of the contract. The complaint, affidavits and other papers in support of respondent’s motion for summary judgment do not allege that all the terms and conditions on the respondent realtor’s part to be performed were, in fact, performed. Under these circumstances there exists a question of fact which precludes the granting of summary judgment. (Appeal from judgment of Ontario County Court—broker’s commission.) Present-Cardamone, J. P., Simons, Dillon, Hancock, Jr., and Witmer, JJ.